Citation Nr: 1215772
Decision Date: 05/02/12 Archive Date: 05/10/12
DOCKET NO. 10-19 124 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for tinnitus
2. Entitlement to service connection for a right leg disorder.
3. Entitlement to service connection for a left knee and leg disorder.
4. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D.J. Drucker, Counsel
INTRODUCTION
The Veteran had active military service from November 1973 to November 1977.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2009 and October 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The August 2009 decision denied service connection for bilateral leg and ankle problems and tinnitus. The Veteran submitted a timely notice of disagreement with the RO's determination. However, in an April 2010 rating decision, the RO granted service connection for degenerative arthritis of the left and right ankles. The Veteran perfected an appeal as to the remaining issues. The October 2011 decision denied entitlement to a TDIU.
In March 2012, the Veteran sitting at the RO, testified during a hearing conducted via video conference with the undersigned Veterans Law Judge. A transcript of the hearing is of record.
After issuance of the December 2010 supplemental statement of the case (SSOC), VA medical records, dated from November 2010 to September 2011 were added to the claims file. However, these records address the Veteran's treatment for medical problems completely unrelated to the disorders at controversy in the instant appeal, i.e., prostate cancer, heart surgery, and gastrointestinal problems. Thus, the Board does not find this evidence pertinent to the claims on appeal and a waiver of initial RO review is not necessary. See 38 C.F.R. §§ 20.800, 20.1304(c) (2011).
In an October 2011 rating decision, the RO denied the Veteran's claim for a TDIU. In a November 2011 written statement, his service representative requested that the RO "[p]lease take action to consider the" October 2011 rating decision "reopened" and noted that the Veteran was providing additional evidence for consideration (see Dr. D.B.'s November 2011 written statement regarding employability). That matter is not currently perfected for appellate review and is referred to the RO for appropriate action.
FINDINGS OF FACT
1. Resolving all doubt in the Veteran's favor, tinnitus had its onset during active military service.
2. The evidence preponderates against a finding that the Veteran currently has a leg disorder related to service.
3. The evidence preponderates against a finding that chronic left knee disability that had its onset during active service or is otherwise related to active service, and arthritis was not manifested to a compensable degree within one year of his separation from active service.
CONCLUSIONS OF LAW
1. Resolving all doubt in the Veteran's favor, tinnitus was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).
2. A right leg disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.
3. A left leg disorder and left knee degenerative arthritis were not incurred in or aggravated by active service and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
In a May 2009 letter, the agency of original jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011) and 38 C.F.R. § 3.159(b) (2011). The AOJ notified the Veteran of the information and evidence necessary to substantiate his claims. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the May 2009 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, this Veterans Law Judge outlined the issues on appeal and suggested that any evidence tending to show that the Veteran had pertinent disability related to active duty would be helpful in establishing the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.
VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records were obtained. The Veteran's VA and private medical records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured.
In March and July 2009 and March 2010, the Veteran underwent VA examinations in conjunction with his claims, and the examiners provided opinions regarding the etiology of the claimed disorders from which the Board may render a fair and reasoned decision. The examination reports are of record. See 38 C.F.R. § 3.326 (2011)
The Board finds that the duty to assist the Veteran has been satisfied in this case
II. Factual Background and Legal Analysis
The Board has reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).
Under 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
"To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement.
Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). This is also a direct service connection theory of entitlement.
In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiner v. Brown, 7 Vet. App. 513, 516-17 (1995).
When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); see Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).
The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002).
However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, shortness of breath or loss of sense of smell, the Veteran is not competent to provide evidence as to more complex medical questions such as the etiology of lower extremity orthopedic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).9807
A. Tinnitus
The Veteran seeks service connection for tinnitus that he says was incurred during active service when he was a weapons expert that exposed him to gun fire and other loud noises. As a result of acoustic trauma, he maintains that he developed tinnitus that he had since 1973. Thus, the Veteran claims service connection is warranted for his tinnitus.
In the instant case, after a review of the record, the Board finds that the evidence as to the question of whether tinnitus was incurred in active service is in equipoise. Resolving all doubt in favor of the Veteran, service connection for tinnitus is warranted.
Service treatment records are not referable to complaints or diagnoses of tinnitus. When examined in October 1973, prior to his entry into active service, the Veteran denied having ear trouble of any sort and his ears were normal. When examined for separation in October 1977, tinnitus was not noted.
The Veteran's Report of Separation from Active Duty (DD Form 214 MC) indicates that his military specialty was rifleman.
According to a Military Course Completion record from the American Council on Education, issued in June 2008, the Veteran completed Basic Military Training in November 1973 and his service occupation was machine gunner. An attached job description indicates that machine gunners were responsible for tactical employment of 7.62 millimeter (mm) medium machine guns, and the 50 caliber and the 40 mm heavy machine gun, and they were located in weapons platoons.
Post service, a February 1978 VA examination report is not referable to complaints of tinnitus.
In March 2009, the Veteran underwent VA audiology examination. According to the examination report, the Veteran complained of constant bilateral buzzing that started in 1974, with no known etiology. He denied exposure to loud noise prior to service and said he was exposed to acoustic trauma in service from weapons firing with hearing protection used some of the time. The Veteran denied post service noise exposure. In the VA examiner's opinion, it was not likely that the Veteran's tinnitus was due to military service as his hearing was within normal limits at the time of entry into and exit from military service.
In July 2009, the Veteran underwent VA audiology examination and reported having constant tinnitus since 1973 that he always noticed but now has worsened. He believed the tinnitus was related to acoustic trauma in service from gunfire, explosions, and tanks, and said he wore hearing protection when it was provided. He denied exposure to loud noise prior to military service, denied post service occupational noise exposure, and described recreational noise exposure from lawn equipment but used ear protection. In the VA examiner's opinion, the Veteran's tinnitus was not related to acoustic trauma in service because it was not mentioned in his service treatment records and his hearing was within normal limits throughout military service.
In May and July 2010 signed statements, G.I. and D.L.M., Jr., the Veteran's colleagues, said that he reported having constant tinnitus that affected his ability to hear the spoken word.
During his March 2011 Board hearing, the Veteran testified that he was a weapons expert in service when he worked as a machine gunner (see Board hearing transcript at pages 3-4). He said that he also worked in security aboard the USS ENTERPRISE during which he was exposed to loud noise while on the catwalk of the flight deck (Id. at 4). The Veteran said he did not complain of tinnitus in service because he feared "blanket parties" (when other soldiers essentially harassed one another) and did not want to be perceived as a complainer (Id. 5). He said hearing protection was available "at times" but in short supply and was not provided when shooting weapons (Id. at 6).
In support of his claim, the Veteran submitted copies of photographs from the 1973 Marine Corps Boot Camp Yearbook from San Diego, California. He pointed to photos of himself shooting weapons without ear protection (Id. at 6). The Veteran said it seemed as if he always had tinnitus that he described as sounding like a buzzing fluorescent light bulb (Id. at 7). He indicated that he first sought treatment for tinnitus approximately four years earlier when his tinnitus worsened (Id. at 15).
The Veteran also submitted an article from The American Legion Magazine, in August 2009, regarding tinnitus. According to the article "[t]innitus has always been a problem for veterans, because it is usually the result of exposure to a sudden loud noise or explosion - or repeated and prolonged exposure to loud noise that can damage fragile, sound-detecting cells in the inner ear."
The Veteran's service records document that his military occupation was rifleman. He submitted evidence that he was trained as a weapons expert who handled large caliber machine guns in service. The Veteran's account of his noise exposure is credible and consistent with the circumstances of his service. He has not asserted, and the record does not show, that he was exposed to combat. See e.g., 38 U.S.C.A. § 1154(b) (West 2002). See also Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008) (to the effect that § 1154(b) requires more than that a claimant have served in "a combat zone" and does require personal participation in combat with the enemy, meaning he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality). Nevertheless, while the Veteran may not have participated in direct combat, his account of his exposure to acoustic trauma is credible and not inconsistent with the circumstances of his service.
The record further reflects that, in 2009, the Veteran reported having tinnitus since 1973 or 1974, and later testified that he had tinnitus since military service. Here, the Board concludes that the Veteran has established the existence of in-service acoustic trauma consistent with the conditions of that time.
The Board further notes that the record indicates that the Veteran complained of tinnitus when seen by VA in 2009 and reported having tinnitus since 1973 or 1974. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d at 1313. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. at 307. Although VA examiners did not attribute his tinnitus to service they also did not appear to consider his credibility in recounting the onset of his tinnitus. Thus, the evidence is in equipoise as to whether the Veteran has tinnitus due to military noise exposure. Resolving all doubt in the Veteran's favor, service connection is established for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Gilbert v. Derwinski, 1 Vet. App. at 49.
B. Bilateral Leg and Left Knee Disorders
The Veteran also seeks service connection for bilateral leg and left knee disorders that he asserts were incurred during active service. In an April 2009 written statement, the Veteran's representative clarified that the Veteran claimed that he had a bilateral leg disorder due to service-connected intractable plantar keratomas with a history of fractures to the left second and third metatarsals.
During his March 2012 Board hearing, the Veteran testified that he injured his legs when he ran up a hill with full weapons and fell off a cliff in service (see Board hearing transcript at page 9). He reported that his injuries were treated by a medical corpsman who used an Ace wrap (Id.). The Veteran said that his fear of "blanket parties" prevented him from seeking treatment for his leg problems (Id.). The Veteran stated that Dr. D.B., a VA physician, said that his injuries were due to service and provided a written opinion to that effect (Id. at 13).
Service treatment records indicate that, in September 1977, the Veteran was seen for evaluation of his left knee after he reported walking off a ramp. Results of x-rays taken on September 14th revealed no apparent deformity and the assessment was a severe contusion of the left knee and a possible torn medial meniscus of the left knee. When seen on September 19th, the Veteran was placed on light duty for the following week. According to an undated clinical entry (apparently entered at the end of September 1977), the Veteran sustained direct trauma to his left knee two weeks earlier with effusion. He said his knee currently only hurt at night and not with weight bearing. Objectively, there was no swelling, tenderness, effusion, and medial or lateral laxity, and McMurray's sign was negative. The assessment was left knee sprain, resolved, and the Veteran was returned to full duty. Clinical entries dated at the very end of September 1977, indicate that the Veteran complained of left knee pain. Swelling was noted in the medial aspect of the left knee.
In October 1977, the Veteran was evaluated for left knee pain and a history of a contusion was noted. Objectively, there was no edema and he had limited range of motion. When examined for separation in October 1977, the Veteran's musculoskeletal system and lower extremities were reported as normal.
Post service, the February 1978 VA examination report is not referable to complaints or diagnosis of, or treatment for, leg or left knee problems.
The Veteran underwent VA orthopedic examination regarding his ankles, feet, and left knee in March 2010. The examiner reported that he reviewed the Veteran's medical records. The Veteran said his left knee had bothered him for two to three years. He reported that it "occasionally buckles up and goes out". He had left knee pain but no locking and did not wear a brace. Results of x-rays of the left and right tibia and fibula taken at the time were normal. An x-ray of the left knee showed mild lateral joint compartment narrowing and the impression was mild genu valgus. Upon clinical evaluation, the examiner diagnosed bilateral ankle degenerative arthritis, and left knee very early degenerative arthritis. In the VA examiner's opinion, the Veteran's left knee problem was not related to his in-service injury as the knee only was bothering him for a couple of years and the trouble in service was found to be completely resolved as noted in the service medical record. The VA examiner said that the Veteran did not have a bilateral leg condition.
Bilateral lower extremity peripheral neuropathy was noted in a June 2010 VA examination.
In a November 2011 signed statement, D.B., M.D., a VA physician, said that the Veteran was his patient and that, due to multiple service-connected disabilities, the Veteran was unable to maintain any gainful employment.
The Veteran has contended that service connection should be granted for bilateral leg disability. However, VA and non-VA medical records, dated after the Veteran's separation from service, reveal no showing that he had right and left leg disorders, aside from peripheral neuropathy. Furthermore, the Veteran has submitted no evidence to show that he currently has right and left leg disorders. In fact, the March 2010 VA examiner expressly stated that the Veteran did not have a "bilateral leg disorder". In short, no medical opinion or other medical evidence showing that the Veteran currently has right and left leg disorders has been presented. See Degmetich; Brammer; Rabideau v. Derwinski, 2 Vet. App. at 143.
The Veteran has also contended that service connection should be granted for left knee degenerative arthritis. However, although the evidence shows that degenerative arthritis of the left knee has been diagnosed, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof, including the Veteran's service-connected bilateral foot and ankle disabilities. In short, no medical opinion or other medical evidence relating the Veteran's left knee degenerative joint disease to service or any incident of service, including a service-connected disability, has been presented. See 38 C.F.R. §§ 3.303, 3.310; see also Allen, Wallin, and Reiner, supra.
On the other hand, the record reflects that the Veteran's lower extremities and musculoskeletal system were normal on separation from service and the first post-service evidence of record of left knee pain is from 2009 over 30 years after the Veteran's separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).
Additionally, in his initial claim for VA benefits, received by the RO in December 1977, the Veteran did not mention left knee or leg disability. Such an omission argues against the Veteran's current claim for service connection, filed over 30 years later. It seems likely that he would have filed for compensation at the time if he thought the disability warranted service connection. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).
The only probative opinion of record is that of the March 2010 VA examiner who opined that the Veteran's left knee degenerative arthritis was not related to his in-service injury as it was only bothering him over the past few years and the in-service problem was found to be completely resolved as noted in the service medical records. The VA examiner provided a clear rationale to support that opinion. There is no competent medical evidence to contradict this opinion.
While the Veteran maintains that he has bilateral leg disability and left knee degenerative arthritis related to military service, as a lay person he has not been shown to be capable of making medical conclusions, thus, his statements regarding diagnosis and causation are not competent. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. at 465. And, as noted above, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as leg and knee pain, a broken leg, varicose veins, or even tinnitus, he is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. at 456.
The Veteran is competent to state that he injured his legs and left knee in service, he is not competent to state that he had left knee degenerative arthritis a result of that injury. The knee pathology of degenerative arthritis is not readily recognizable by a layman, such as varicose veins or acne. Even medical professionals rely on x-rays and other diagnostic tools to diagnose degenerative arthritis, and to the extent he is claiming continuity bilateral leg and left knee symptoms since the in-service injury, he is not a reliable historian in this respect. At service discharge, examination of his lower extremities and musculoskeletal was normal. When filed a claim for compensation in December 1977, he made no mention of leg or left knee disability. On VA examination in February 1978, he did not complain of leg or left knee problems. When first seen for knee pathology after service, in 2010, the Veteran said his left knee bothered him for two or three years. The Board does not find that there is credible evidence of continuity of symptomatology present.
As such, the evidence here is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the objective and probative medical and other evidence of record is against the Veteran's claim for service connection for right and left leg disorders and left knee degenerative arthritis and his claims are therefore denied.
ORDER
Service connection for tinnitus is granted.
Service connection for a right leg disorder is denied.
Service connection for a left knee and leg disorder is denied.
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THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs